A daily digest of immigration-related federal court decisions from around the United States.
Immigration Litigation Update 7th Cir: Babaisakov overrules CIMT case law per Brand X - categorical test no longer applies | 7th Cir: Babaisakov overrules CIMT case law per Brand X - categorical test no longer applies |
|
|
| Friday, 04 April 2008 | |||||||||||||||
|
Ali v. Mukasey (7th Cir. 4.4.08) EASTERBROOK Manion Sykes In determining whether a crime is a CIMT, the 7th cir deferred under Chevron to the Board decision in Matter of Babaisakov, 24 I.&N. Dec. 306 (2007), finding that the Board is not obligated to apply a categorical test to the CIMT determination. It may go outside the record, as here, where the presentence report shows that fraud was sort of involved. Hashish v. Gonzales, 442 F.3d 572, 575 (7th Cir. 2006); Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005), overruled - under Brand X.
Facts: The Petitioner was an LPR convicted of an Aggravated Felony, and thus ineligible for almost all relief - he was barred from a 212(h) waiver - but if his agg felony was not a CIMT, he would not need the 212(h) waiver, and could adjust status.
1. Notes that if there was fraud involved, no one disputes that fraud convictions involve moral turpitude - question is whether they can use the presentence report to establish the fraud. Ali does not deny that, if his conviction is for fraud, then he is ineligible for discretionary relief. But he insists that unlicensed dealing in firearms does not entail fraud. If his conviction were under 18 U.S.C. §924(a)(1)(D), as he supposes, Ali might have a point—Bryan v. United States, 524 U.S. 184 (1998), on which the agency’s brief relies, has nothing to do with moral turpitude—but the actual offense of conviction is 18 U.S.C. §371. That crime may be committed in either of two ways: conspiracy to commit some other federal crime, or conspiracy to defraud the United States. The IJ and Board concluded that Ali’s violation of §371 entailed fraud (implying that the subsection of §924 underlying the crime was §924(a)(1)(A)). And with good reason. The judgment of conviction describes the crime as “[c]onspiracy to defraud the United States.” The presentence report adds: “it was further part of the conspiracy that the defendants misrepresented, concealed and hid, and caused to be misrepresented[,] concealed and hidden, the purpose of and the acts done in furtherance of the conspiracy”. The presentence report also stated that Ali and his confederates sold the guns to someone who, they believed, would resell them to known thugs (members of the Latin Kings street gang) in exchange for cocaine.
2. Distinguishes Taylor and Shepard as applying in criminal cases. Our decisions in Hashish, Padilla, and similar cases apply to immigration law the approach that Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), adopt for recidivist enhancements in federal criminal prosecutions. The Supreme Court gave two principal reasons: in Taylor it stressed the benefits of simple application, so that sentencing not be burdened by a retrial of the original prosecution, and in Shepard it stressed the allocation of tasks between judge and jury under the sixth amendment. The Justices adopted a rule that prevented the sentencing judge in the new case from assuming a role that the Constitution assigns to the jurors in the first case. Neither of these reasons applies to immigration proceedings. They are not criminal prosecutions, so the sixth amendment and the doctrine of Apprendi v. New Jersey, 530 U.S. 466 (2000), do not come into play. And how much time the agency wants to devote to the resolution of particular issues is, we should suppose, a question for the agency itself rather than the judiciary. See Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (adopting for immigration cases what the court called a “modified categorical approach” rather than the rule that Taylor and Shepard devise for criminal prosecutions). This leaves decisions such as Hashish and Padilla hanging, for they do not discuss the differences between administrative and criminal proceedings. Meanwhile other panels have felt free to look beyond the charge and record of conviction to classify an offense as one of moral turpitude, see Wei Cong Mei, and still other panels have noted the inconsistent treatment within the court. See, e.g., Abdelqadar v. Gonzales, 413 F.3d 668, 671–72 (7th Cir. 2005). Instead of starting with the procedures used in criminal prosecutions, we think it best to recognize that there are at least two distinct questions in immigration proceedings. The first is the fact of the prior conviction, which usually is the only thing that needs to be established for recidivist sentencing in a criminal prosecution. The second is the appropriate classification of that conviction, which may require additional information. The need to decide whether a crime is one of “moral turpitude” does not have a parallel in criminal cases and may require some additional information, since the charging papers that led to the prior conviction are not framed with such classifications in mind (for “moral turpitude” just isn’t relevant to the criminal prosecution; it is not as if “turpitude” were an element of an offense). Other parts of immigration law ask how much the victim lost from a crime (one example is 8 U.S.C. §1101(a)(43)(M)(i)), and again this is not an element of the crime but must be pinned down in the administrative proceeding. For the first question—of what crime does the alien stand convicted?—the Immigration and Nationality Act supplies a rule. * * * 8 U.S.C. §1229a(c)(3)(B). This statute is similar to the approach of Taylor and Shepard, but to the extent of any difference the statute must control. As for the second question—whether the agency may go beyond the record of conviction to characterize or classify an offense—the Board has decided that additional evidence may be taken by the immigration judge when necessary. Matter of Babaisakov, 24 I.&N. Dec. 306 (2007).
3. Pre-Babaisakov decisions must be reexamined under Brand X - and Court finds Babaisakov reasonable (after circulating to the full en banc court). Decisions such as Hashish and Padilla — in and out of this circuit — predate (or do not notice) Babaisakov and require reexamination now that the Board has fully developed its own position, for administrative discretion belongs to the agency rather than to the court. See National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005). If our opinions had concluded that the immigration laws leave the Board with no course other than the one applied to criminal prosecutions by Taylor and Shepard, then the Board’s view must yield. But that’s not what Hashish, Padilla, and similar decisions say. They just carry over to immigration proceedings an approach familiar to the federal judiciary from criminal prosecutions. Given §1229a(c)(3)(B), which none of our prior opinions mentions, and Babaisakov, which is new, we now conclude that when deciding how to classify convictions under criteria that go beyond the criminal charge—such as the amount of the victim’s loss, or whether the crime is one of “moral turpitude”, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction. Because it resolves a disagreement within the circuit, this opinion has been circulated to all active judges under Circuit Rule 40(e). No judge favored a hearing en banc.
4. In preliminary holding, rejected Board´s other holding, that gun dealing was CIMT because of the inherent dangerousness of guns. The single member speaking for the Board wrote that firearms licenses are different, because guns “require a license due to their inherent potential risk to the public welfare”. That reflects ignorance of this nation’s history. Licensing of dealers (and users) of firearms is a recent development; the first version of what is now §922 and §924 was not enacted until 1968; there is nothing inevitable about the current rules. Guns are dangerous, but the choice between licensing (a form of limited control before the fact) and punishment for misuse of firearms is not an obvious one. Knives and other blade weapons are not licensed; their misuse is controlled through sanctions after the fact, which deter future wrongdoing. There are open questions, reflected in Parker v. District of Columbia v. Heller, 478 F.3d 370 (D.C. Cir. 2007), cert. granted under the name District of Columbia v. Heller, 128 S. Ct. 645 (2007) (argued March 18, 2008), about the extent to which the Constitution’s second amendment allows the national government to regulate firearms. One reason why many firearms-control statutes require proof that the accused knew about the law’s requirements is precisely that any complex licensing system has unexpected and counterintuitive applications, which people cannot discover by consulting a moral compass. See Staples v. United States, 511 U.S. 600 (1994).
Analysis: 1. I've always thought one of the better arguments re Babaisakov is "the law of the case" doctrine - i.e., if the Govt fails to meet its BoP to prove that my client is an AggFelon, that should be the end of the story, even when it comes to the relief phase. One problem with this (resourceful, nearly successful) argument is that there was no CIMT removability charge, so it was clear that the burden was on us. 2. It has been pointed out by commentators that Judge Easterbrook's argument does somewhat ignore the SupCt decision in Duenas-Alvarez:
Of course, the SupCt's statement is more of an analysis than a holding, and I grant that under Brand X, the Board could possibly overturn this general consensus. But it would certainly seem to suggest caution. (I note that Duenas-Alvarez was not cited in any of the briefs; who'd have thought that Easterbrook would go off in this way?). - CR
Atty: Steven Morley, Philadelphia, PA
Powered by !JoomlaComment 3.12 Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved. |
|||||||||||||||
| < Prev | Next > |
|---|